CHAPTER 3: Is the Law Working?|
The balance between articles 8
28. The courts have interpreted articles 8 and
10 of the European Convention on Human Rights as being rights
of equal standing; neither party bears a burden of proof to show
that his or her right (privacy or freedom of expression) trumps
the other. Cases in which both rights are engaged are decided
following an intense focus on the facts of the case and how each
right applies to those facts.
29. Some witnesses thought that the courts have
given too much weight to the right to privacy in article 8, and
insufficient weight to freedom of expression, especially as that
right is exercised by the press. Witnesses from the press thought
judges had become defenders of privacy and that their judgments
had tilted towards that in recent years and months.
It was thought that it had been too easy to get through the article
8 gateway and too hard to get through the article 10 gateway.
30. Some witnesses thought that the balance may
have previously tilted too far towards privacy, but that following
recent judgments it had become more appropriately balanced.
31. The majority who commented on this point
said that they thought the courts were striking the balance between
the two rights correctly. The Lord Chancellor, the Rt Hon Kenneth
Clarke QC MP, thought the balancing exercise had been about right,
as did a number of other witnesses.
32. We believe that the courts are now striking
a better balance between the right to privacy and the right to
freedom of expression, based on the facts of the individual case.
A privacy statute
33. In recent years there have been suggestions
that the courts are creating a privacy law "through the back
door". The point was made forcefully by Paul Dacre, Editor-in-Chief
of Associated Newspapers, in 2008
"inexorably, and insidiously, the British press
is having a privacy law imposed on it, whichapart from
allowing the corrupt and the crooked to sleep easily in their
bedsis, I would argue, undermining the ability of mass-circulation
newspapers to sell newspapers in an ever more difficult market.
The law is not coming from Parliamentno, that
would smack of democracybut from the arrogant and amoral
[of] Justice David Eady who has, again and again,
under the privacy clause of the Human Rights Act, found against
newspapers and their age-old freedom to expose the moral shortcomings
of those in high places."
34. The alternative to "judge-made"
law suggested by some witnesses
is for Parliament to enact a privacy statute. That might help
to counter such accusations by giving the law clear democratic
authority. The Lord Chancellor said that the Government have an
open mind about new legislation on privacy, but that clarity was
needed as to what was meant by a statutory law of privacy.
A STATUTE DEFINING PRIVACY
35. A statutory definition of privacy would have
the advantage of perhaps creating more certainty in the law: editors
might be able better to assess whether a proposed article is likely
to infringe privacy or not; similarly, potential claimants may
have a better chance of knowing whether they will be successful
before proceeding to court. Time and money spent on going to court
might be saved. Examples of what counts as private information
could be listed in the statute, making the right to privacy more
accessible. In addition, any defects in the current law could
36. Any law that sought to define what is private
would, in order to remain compliant with the European Convention
on Human Rights, also have to set out that the right to privacy
is balanced against the right to freedom of expression (and, potentially,
other rights). There would then be pressure to spell out in more
detail those rights and to define the public interest. There is
a risk that definitions will not keep pace with developments in
society. There is danger that any list will be treated as exhaustive,
and so fail to cover information which should be protected as
private. Any list
that purports to be exhaustive will imply that anything not in
the list should not be covered. There would no doubt be litigation
over the interpretation of the new provisions.
37. We believe that any statutory definition
of privacy would risk becoming outdated quickly, would not allow
for flexibility on a case-by-case basis and would lead to even
more litigation over its interpretation. For these reasons we
do not recommend one.
A STATUTE REAFFIRMING THE RIGHT
38. It has been suggested that, while it would
be extremely difficult to draw up a detailed legislative definition
of privacy, there is value in a statute which restates the right
to privacy in broad terms, giving it the clear imprimatur of Parliament
and thus the democratic process. No longer would elements of the
media be able to rail against "judge-made law", as it
would have been endorsed by Parliament. If such a scheme were
followed judges would still decide how to strike the balance in
each casethe difference being that in so doing they would
be interpreting a statute with clear and recent parliamentary
39. However, the utility of going through the
time-consuming process of legislating when it is not intended
to change the substantive law could be questioned. The purpose
of an Act of Parliament is to change the law; not to make a declaration.
There would be the likelihood of satellite litigation on the effect
of the new statute.
40. The laws around privacy already have statutory
foundation. They have developed following the passing of the Human
Rights Act 1998, which Parliament enacted in full knowledge that
the common law would gradually develop a right to privacy in UK
law. During the passage
of the Human Rights Bill through the House of Lords the then chairman
of the Press Complaints Commission, the Rt Hon Lord Wakeham, moved
an amendment which aimed "to stop the development of a common
law of privacy".
The amendment was withdrawn. Replying to the debate on it the
Lord Chancellor, the Rt Hon Lord Irvine of Lairg, said
"I repeat my view that any privacy law developed
by the judges will be a better law after incorporation of the
convention because the judges will have to balance and have regard
to articles 10 and 8, giving article 10 its due high value. What
I have said is in accord with European jurisprudence."
41. We do not recommend a statute declaring
in broad terms the right to privacy. We disagree with criticisms
that privacy law has been "judge made" and does not
have parliamentary authority; it has evolved from the Human Rights
Determining the public interest
in private lives
42. Defining the public interest is no easier
than defining privacy. The concept of the public interest is mentioned
in a number of statutes, including ones concerning privacy,
but there is no comprehensive statutory definition. Witnesses
cited instances where the courts have considered there to be a
public interest in disclosure in cases based on copyright, defamation
and breach of confidence. The issues cited include the business
of government and political conduct; the protection of public
health and safety; the fair and proper administration of justice;
the conduct of the police; cheating and corruption in sport; involvement
in serious crimes; corporate malpractice; the sympathy of a public
figure with extremist dogma; and the correction of prior statements
or misrepresentations by others.
43. If a public interest can be demonstrated
in the revelation of private information, that will often lead
to the courts striking the balance in favour of freedom of expression
in that case.
GUIDANCE ON THE PUBLIC INTEREST
IN MEDIA CODES
Press Complaints Commission guidance on
the public interest
|(1) The public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement of an individual or organisation.
(2) There is a public interest in freedom of expression itself.
(3) Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest and how, and with whom, that was established at the time.
(4) The PCC will consider the extent to which material is already in the public domain, or will become so.
(5) In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child.
44. The Press Complaints Commission's Editors' Code of Practice's
guidance on the public interest is in Box 2. The requirement in
paragraph (3) for editors to demonstrate how and with whom they
established that the public interest is invoked was added in December
45. The Ofcom Broadcasting Code also contains
examples of what may be in the public interest as a defence to
its clause on privacy. Privacy in television and radio programmes
is protected under section 8 of the Broadcasting Code, the principle
of which is to ensure that broadcasters avoid any unwarranted
infringement of privacy in programmes and in connection with obtaining
material included in programmes. The relevant provision, rule
8.1, is in Box 3.
Rule 8.1 of the Ofcom Broadcasting Code
8.1 Any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted.
Meaning of "warranted":
In this section "warranted" has a particular meaning. It means that where broadcasters wish to justify an infringement of privacy as warranted, they should be able to demonstrate why in the particular circumstances of the case, it is warranted. If the reason is that it is in the public interest, then the broadcaster should be able to demonstrate that the public interest outweighs the right to privacy. Examples of public interest would include revealing or detecting crime, protecting public health or safety, exposing misleading claims made by individuals or organisations or disclosing incompetence that affects the public.
46. Neither the PCC nor the Ofcom codes' definitions purport
to be exhaustive. Both contain examples that are themselves open
to interpretation. Both allow for the publication of material
that may not itself demonstrably be in the public interest: the
PCC's code by way of the statement that "there is a public
interest in freedom of expression itself";
the Ofcom code by allowing a broadcaster to justify material as
"warranted" on grounds other than because it is in the
DEFINING THE PUBLIC INTEREST
47. Most witnesses who favoured a statutory privacy law favoured
a statutory definition of the public interest, to be included
as part of the same law.
Some thought that a definition could easily be drawn from existing
codes that tend to differ in length and scale rather than substance,
such as the BBC Editorial Guidelines, the Ofcom Broadcasting Code
and the Press Complaints Commission's Editors' Code of Practice.
A statutory definition could aide clarity and enable Parliament
to set out what constitutes the public interest.
It would give greater certainty to individuals and the media,
and potentially head off litigation.
48. Similarly, most witnesses who were against
a privacy law were not in favour of a statutory definition of
the public interest.
The arguments against them are largely the same: that any definition
would either be so rigid that it could not keep pace with social
mores or so loose as to make it almost meaningless;
that the current interpretation of the public interest used by
the courts is adequate and reasonably clear;
that cases would still have to be determined by judges based on
the specific facts;
and that any new definition is likely to lead to satellite litigation.
49. The worst excesses of the press have stemmed
from the fact that the public interest test has been too elastic
and has all too often meant what newspaper editors want it to
mean. We heard that both Ofcom and the BBC Trust use more detailed
definitions of the public interest and apply their public interest
test with greater consistency.
We believe that all relevant regulatory bodies should now adopt
a common definition of what is meant by the public interest that
should be reviewed and updated regularly.
50. We do not recommend a statutory definition
of the public interest, as the decision of where the public interest
lies in a particular case is a matter of judgment, and is best
taken by the courts in privacy cases. As an alternative, we expect
the reformed media regulator, in conjunction with other regulators,
to publish clear guidelines as to what constitutes the public
interest, and to update them where necessary.
Injunctions and section 12 of
the Human Rights Act 1998
51. Interim injunctions are an important remedy
in privacy actions, since once information is public, its private
nature cannot be restored; it is not possible to undo a breach
of privacy. Preventing a story appearing in the first place will
usually be more important to a claimant than obtaining damages
after the event. The situation can be contrasted with defamation,
where injunctions are virtually impossible to obtain
and where a claimant's reputation may be vindicated by an award
of damages, unless the defendant proves the truth of the defamatory
allegations or succeeds with some other defence.
52. The conflict between articles 8 and 10 was
of concern during the passage of the Human Rights Bill in 1997-98.
There was speculation about how the courts might interpret the
right to privacy without further guidance. In particular, there
were concerns that the courts might be too ready to grant claimants
injunctions to prevent publication of a story which the claimant
alleges infringes their right to privacy. There was unease about
the effect on the media if injunctions were too readily obtainable,
leading to the media not pursuing stories which may be in the
public interest for fear of having an injunction issued on them.
In response the Government introduced what became section 12 of
the Human Rights Act 1998. The text of section 12 is in Box 4.
Section 12 of the Human Rights Act 1998
12 Freedom of expression
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to
(a) the extent to which
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
(5) In this section
"court" includes a tribunal; and
"relief" includes any remedy or order (other than in criminal proceedings).
53. Section 12 has four features: subsection (2) seeks to
ensure that defendants are notified of an application for an injunction
(and thus can be represented at the hearing) unless there are
compelling reasons not to. Subsection (3) requires the court to
be satisfied that the claimant will establish at full trial that
the right to privacy outweighs the freedom of expression in publishing.
Subsection (4) requires the court to "have particular regard
to the importance of the Convention right to freedom of expression".
Finally, subsection (4)(b) requires the court to have regard to
"any relevant privacy code". In a case concerning a
newspaper this can mean the Press Complaints Commission's Editors'
Code of Practice.
REQUIREMENT TO HAVE "PARTICULAR REGARD TO
THE IMPORTANCE OF FREEDOM OF EXPRESSION"
54. Subsection (4) of section 12 (was thought by some to make
clear that freedom of expression should normally take precedence
over the right to privacy.
Some witnesses were disappointed this had not happened in practice.
55. Others thought that it was never intended
to have any real meaning.
Professor Gavin Phillipson of Durham Law School, Durham University,
thought it did not attempt to establish priority for freedom of
expression; had Parliament wished to do that it would have used
more explicit language. Rather, he suggested that it made more
sense to read it as requiring judges to give as much weight to
freedom of expression as the Convention itself allows.
56. Section 12 has to be interpreted in the light
of section 3 of the Human Rights Act 1998, which requires that
so far as possible primary legislation, including the Human Rights
Act itself, has to be interpreted compatibly with Convention rights.
Therefore, as the Convention rights in articles 8 and 10 are of
equal weight, section 12 has to be interpreted in accordance with
that principle. Sir Stephen Sedley, a former Court of Appeal judge,
said that section 12 requires the courts to have "particular
regard"; "it does not say "overriding regard".
The courts have had particular regard, in fact, to all the Convention
rights when they have applied them."
57. Some witnesses thought section 12(4) an "anomaly"
because it sought to create an imbalance between the two rights
and advocated its removal.
Other witnesses thought that it was appropriately balanced and
was being correctly applied.
The Rt Hon Jack Straw MP, Home Secretary during the passage of
the Human Rights Bill, said "there was never any question"
that section 12 would give the courts a trump card in respect
of one article over the other.
58. David Price QC said "If the purpose
of section 12 was to give the benefit of the doubt to freedom
of expression it has certainly failed."
However, if that was the purpose it would arguably be incompatible
with the jurisprudence on the articles, which states that the
two have equal weight.
59. We do not think that section 12(4) of
the Human Rights Act 1998, in requiring the courts to "have
particular regard to the importance of the Convention right to
freedom of expression" when considering whether to grant
any relief, means that article 10 has precedence over article
8. The practical effect of the claimant satisfying section 12(3)
(see below) means that article 8 does not have precedence over
article 10. However, we support the decision of Parliament to
make clear in law the fundamental importance of freedom of expression
and would be concerned that removing section 12(4) might suggest
that this is no longer the case. We do not recommend any alteration
to the law in this area.
COURTS' WILLINGNESS TO GRANT INJUNCTIONS
60. Section 12(3) requires the courts to grant
interim injunctions only when "satisfied that the applicant
is likely to establish that publication should not be allowed."
The courts have interpreted this as meaning that the applicant
will usually have to demonstrate that they are "more likely
than not" to succeed at trial.
That is a higher threshold than in hearings for interim injunctions
in respect of other causes of action.
In introducing the amendment that became section 12 Jack Straw
MP said that "it is intended overall to ensure ex parte
injunctions are granted only in exceptional circumstances. Even
where both parties are represented, we expect that injunctions
will continue to be rare, as they are at present."
61. Some witnesses thought the courts had been
too willing to grant injunctions, especially anonymised or super-injunctions,
or had granted them in the wrong circumstances. The Newspaper
Society was "strongly concerned by the growth in the use
and application" of them as they had "directly affected
regional media coverage of issues of legitimate public interest."
62. By contrast, other witnesses thought they
were not granted excessively or lightly.
Withers LLP thought the media created the impression "that
they are handed out by judges as if they were sweets from a sweet
cited the media tendency to report all privacy injunctions, or
at least all anonymised injunctions, as "super-injunctions".
Such descriptions do not match those proposed by the Master of
the Rolls' committee.
63. The Master of the Rolls' committee stated
that since the Terry case in early 2010 only two super-injunctions
had been granted to protect private information, so far as they
were aware. The committee sought to tighten up procedures for
granting anonymised and super-injunctions, ensuring they were
granted only when strictly necessary; requiring that they be kept
under review, with a date set for the case to return to court;
recommending that Practice Guidance be issued on the approach
to them; and requiring
that when they are issued they are recorded and the data on them
collated. The committee
also said that "anyone aware of a case where a super-injunction
was granted without a return date, and/or where the proceedings
have not been pursued, should raise the issue with the applicant's
Since the publication of the Master of the Rolls' committee's
report in May 2011 there appears to be less public concern about
the prevalence of injunctions.
64. Departures from the principle of open
justice should be exceptional and should only happen when they
are essential. We strongly welcome the arrangements made by the
Master of the Rolls to monitor and publish figures on the number
of anonymised and super-injunctions granted and the circumstances
in which they are granted.
65. We recommend that super-injunctions and
anonymised injunctions that were granted before the Master of
the Rolls' committee's report and are still in force are reviewed
by the courts to ensure they are still necessary and are compatible
with that committee's conclusions on open justice. Those reviews
should be prompted by the courts writing to the parties concerned.
Once reviewed figures on them should be published.
EFFECTS OF INJUNCTIONS UPON INDIVIDUALS
66. Many injunctions have been taken out by celebrities,
largely because they are more able to afford them than most people.
The press are often the defendants to injunctions, or at least
are served with them. However, there can be other parties to injunctions:
individuals who are enjoined by an injunction not to discuss private
67. We heard evidence about the effect an injunction
can have on such individuals. Alex Hall, the ex-wife of TV presenter
Jeremy Clarkson, spoke about how "terrified" she was
when she received an email with a 20-page injunction that had
been obtained by her ex-husband against her.
She had no idea what an injunction was and had been given no notice
of the application for one, even though section 12(2) of the Human
Rights Act 1998 requires the claimant to notify other parties
to the claim of their intention to seek an injunction unless there
are "compelling reasons" not to notify.
She felt prevented from approaching publishers
about the material subject to the injunction; that meant there
was no possibility of her obtaining advice from a publisher's
68. There are also concerns that super-injunctions
can impede individuals from gaining access to funding for legal
representation and from reporting malpractice or criminality to
the relevant authorities.
69. When an injunction is granted the court
should consider fully its effect on individuals restrained by
the injunction, such as the effect on their ability to seek legal
advice or funding for legal representation, or to report relevant
matters to the authorities. Guidance on this should form part
of the Practice Guidance issued by the Master of the Rolls.
Cross-border enforcement of injunctions
within the United Kingdom
70. The United Kingdom has three separate legal
systems: those of England and Wales, Northern Ireland and Scotland.
Section 18(5)(d) of the Civil Jurisdiction and Judgments Act 1982
provides that an interim measure (including an injunction) obtained
in one of the UK's jurisdictions is not enforceable in the other
jurisdictions. Thus, an interim injunction obtained in the High
Court in London is not enforceable in Scotland or Northern Ireland;
separate orders would have to be obtained from those jurisdictions.
However, final injunctions granted in one jurisdiction in the
UK can be enforced in the other jurisdictions, by virtue of that
71. This issue arose in the Ryan Giggs case,
where in the absence of a Scottish interim injunction (an interdict)
the claimant's identity was published in the Sunday Herald,
a Scottish newspaper, on 22 May 2011. The editor of that newspaper
said that they had not breached the interim injunction because
it did not apply in Scotland.
72. The Attorney General did not think there
was a problem with cross-border enforcement; because separate
legal systems are a fundamental part of the UK's national make-up,
there was no way around the issue.
Others thought that the issue undermined respect for the law.
73. Witnesses drew attention to the cost of applying
for an injunction in up to three separate jurisdictions.
It was suggested that a streamlined system for registering English
interim injunctions in Scotland may assist.
74. We recommend that interim injunctions
granted in one jurisdiction in the United Kingdom are enforceable
in the other two jurisdictions in the same way as final injunctions
Privacy, celebrities and public
75. An argument often advanced in the media is
that certain individualsparticularly celebrities, sportsmen
and politiciansmake a living out of publicity and therefore
should not be able to pick and choose when the media report on
their private lives.
It is argued that some people open their private life to the media
when it suits them (e.g. in order to promote a new film or album),
so should not complain when other aspects of their private life
are reported on. Other people by the nature of their work or position
find themselves in the public eye, so should expect there to be
interest in their private lives.
76. Marcus Partington, Deputy Secretary/Group
Legal Director at Trinity Mirror plc, thought there were categories
of people who had less privacy rights than others, and that this
was recognised by the judiciary and in the PCC code.
He pointed to the J K Rowling case, where a photograph was taken
of her son. She had deliberately decided not to put him in the
public domain; the court upheld his right to privacy but said
the position would be different if she had decided otherwise.
Richard Wallace, editor of the Daily Mirror, said that
there were gradients of privacy and exposure to publicity that
needed to be accounted for. He compared J K Rowling with Katie
Priceaka Jordanwho "regularly commoditises"
her privacy and that of her children.
Max Clifford, founder of Max Clifford Associates, agreed, citing
the same example
"You have to look at every situation on its
own merits. A celebrity or a star who uses every means to promote
themselves and their private lives to the public as part of their
careersomeone like Katie Pricedoes not deserve the
same protection as a star who generally tries to keep his or her
private life out of the media."
77. Some thought an individual did not waive
their right to privacy by occupying a public role, but could have
a reduced expectation of privacy if, for example, they parade
their family before the cameras or invite magazine photographers
into their homes.
78. Other witnesses stressed the importance of
there being a universal right to privacy which is respected by
the media. It should be a firmly established principle that article
8 applies to everyone, whether or not they are public figures.
However, it is largely accepted that there is a public interest
in exposing hypocrisy if the creation of a false image enabled
the individual to benefit financially or obtain a post they might
otherwise not have.
79. Linked to the issue of disclosure of details
of celebrities' private lives is the question of whether the courts
are giving appropriate weight to the value of freedom of expression
in celebrity gossip. The courts have held that there is a scale
of freedom of expression, with political expression at the top
end to pornography or the right of blackmailers to freedom of
speech at the bottom.
The comments of the Rt Hon Baroness Hale of Richmond about "the
most vapid tittle-tattle about the activities of footballers'
wives and girlfriends [which interest] large sections of the public
but [in which] no-one could claim any real public interest in
our being told all about it"
suggests that gossip is towards the bottom of the scale.
80. We believe that those who actively seek
publicity, especially for gain, should accept that this will mean
enhanced interest in their private lives by the media. This should
not, however, mean that they sacrifice all rights to privacy.
The degree of public exposure of an individual, and the extent
to which they have sought it and gained from it, are relevant
factors for the courts to take into account in determining a privacy
claim. This will depend on the facts of the particular case.
81. We reject the view that because an individual
exposes his or her children to publicity the children become fair
game for the media. We believe that parents who expose their children
to public gaze for their own commercial gain or publicity are
irresponsible and make it harder for them to defend their children's
right to privacy in other circumstances. However, even in those
instances there must be exceptional reasons for it to be in the
public interest for the media to publish information affecting
the privacy of children.
Commercial viability of the press
82. As gossip in newspapers can help sales and
thus enable journalism to continue to perform its essential role
in a democracy, it might follow that the commercial viability
of the press should be a factor when balancing the public interest
in a story against an individual's right to privacy. If newspapers
do not exist they cannot report on issues obviously in the public
interest. This is a line of reasoning that has been acknowledged
in some cases. For example, the Rt Hon Lord Woolf when Lord Chief
Justice stated that "the courts must not ignore the fact
that if newspapers do not publish information which the public
are interested in, there will be fewer newspapers published, which
will not be in the public interest".
Baroness Hale of Richmond has said that "one reason why press
freedom is so important is that we need newspapers to sell in
order to ensure that we still have newspapers at all".
83. The Chartered Institute for Journalists said
that the commercial viability of newspapers should be taken into
account "because good investigative journalism is expensive
and has to be funded in some way."
Others agreed, observing that the UK press was financially independent
from the state and thereby not at risk of state control by way
of penalties or withdrawal of state funds. The press therefore
relied on revenues from sales and advertising, which required
the widest possible circulation.
84. Other witnesses did not think the commercial
viability of the press was a valid factor in determining the public
interest in stories. Max Mosley thought that it should never be
a consideration as "the idea of breaching someone's privacy,
with all the pain this can cause, for commercial gain is abhorrent
Schillings said that "The press would also be more "commercially
viable" if (to give an extreme example) it had to pay no
corporation tax, or could renege on an unprofitable contractual
Others thought that the newspapers which devoted most space to
scandal devoted least to matters of genuine public interest.
85. Representatives of newspapers stressed that
privacy was a factor they took seriously in considering whether
to publish a story.
They did not claim that the financial situation of the press should
give them carte blanche to publish what they like.
Some newspapers argued that if they started to publish lurid or
excessively intrusive material that would put off their readers,
and therefore worsen their financial situation.
86. Other witnesses did not think privacy issues
played as prominent a role in editorial decision making in some
newspapers as it should. Max Clifford said that the "British
public desperately need protection from the excesses of the media".
Witnesses suggested that the majority of privacy cases are uncontested
by newspapers. Whilst
the costs of doing so will be a factor, the implication could
be that newspapers do not think they have a strong enough defence.
87. We heard conflicting views about the role
of proprietors and boards in ensuring privacy is respected through
the culture and corporate governance arrangements of newspapers.
Evgeny Lebedev, chairman of Independent Print Ltd and Evening
Standard Ltd, felt that proprietors should take an active role
in ensuring that news publishers uphold high standards;
other proprietors and boards were reluctant to be seen to be interfering
in the editorial process.
88. Few newspapers consist solely of serious
news stories. Most of them rely, to varying degrees, on some form
of light-hearted reportage or gossip. It may not be easy to present
a clear explanation as to why such articles are of themselves
in the public interest, but it can be argued that without them
readership of newspapers would decline even further.
89. The media play a vital role in furthering
public debate, exposing wrongdoing and enhancing democracy. Whilst
there is clearly demand for scandal and gossip, this should not
stray into intrusion into people's private lives without good
reason. Chief executives and boards of holding companies should
take responsibility for ensuring that news publishers uphold high
standards, with processes for protecting privacy firmly adhered
18 QQ 889 and 892. Back
QQ 39, 49 and 1234. Back
QQ 405 and 1234; Lord Lester of Herne Hill QC. Back
Q 1027. Back
For example, Hugh Tomlinson QC from Matrix Chambers in his written
evidence and at Q 65; Alasdair Pepper from Carter-Ruck solicitors
(Q 68); Schillings; Lewis Silkin LLP; the Law Society; Hugh Grant
para 14; Paul Ashford, editorial director at Northern & Shell
Network Ltd (Q 589); Professor Steven Barnett, Professor of Communications
at Westminster University (Q 119); and Professor Brian Cathcart,
Founder of Hacked Off and Professor of Journalism at Kingston
University London (Q 119). Back
Speech to the Society of Editors, 9 November 2008: http://www.pressgazette.co.uk/story.asp?storycode=42394.
Mr Dacre repeated the suggestion at a seminar at the Leveson Inquiry
on 12 October 2011, saying that "the Human Rights Act is
resulting in the creation of a privacy law by judges". Back
Professor Julian Petley, Professor of Journalism and Screen Media
at Brunel University and Chair of the Campaign for Press and Broadcasting
Freedom (Q 405); Barnett (Q 119); Steve Coogan (Q 714); Max Mosley
in his written evidence. Back
Q 1031. Evgeny Lebedev, chairman of Independent Print Ltd and
Evening Standard Ltd, also said there was a case for Parliament
examining whether to have a new law (Q 1137). Back
Q 519. Back
Lewis Silkin LLP. Back
Max Mosley supported such legislation (Q 702), as did Hugh Tomlinson
QC. Zac Goldsmith MP thought that the process of passing a privacy
law would enable Parliament and the country to have a proper discussion
about the issues (Q 714). Back
Q 119. Back
Andrew Marr; Schillings. The Law Society said, "Parliament
already effectively enacted a statutory privacy law when it introduced
the Human Rights Act 1998." Back
HL Deb, 24 November 1997, col 772. In evidence to us Lord Wakeham
suggested that both the Government of the day and the Conservative
Opposition said they did not want to create a privacy law (Q 1). Back
Ibid., col 785. Back
For example, sections 58(7) (and other provisions) of the Regulation
of Investigatory Powers Act 2000; section 31(3)(c) (and other
provisions) of the Data Protection Act 1998. It is also referred
to but left undefined in the draft Defamation Bill. By contrast,
the Bribery Act 2010 contains no public interest defence, despite
the Lord Chancellor being pressed to include one (Q 1025). Back
Scott. Lord Grabiner QC and Dr Kirsty Hughes of Cambridge University
also cite cases where public interest arguments have succeeded
and failed. Back
The contribution which publication of information in an article
would make to a debate of general interest was described as the
"decisive factor" in balancing freedom of expression
against privacy in ETK v News Group Newspapers  EWCA
Civ 439 at . The European Court of Human Rights used similar
language in the first Von Hannover v Germany (op. cit.,
para 76). Back
Described by Professor Steven Barnett as "weasel words ...
a get-out clause for essentially anything you want to publish"
(Q 143). Steven Abell, then Director of the PCC, thought the words
did not seek to create a "trump card" for freedom of
expression, and that to cite that clause and say "everything
is therefore fair game ... would be ridiculous" (Q 777). Back
For example, Tomlinson; Lebedev (Q 1137). Back
Q 700. Back
For example, the Media Standards Trust; the Society of Editors;
Berrymans Lace Mawer LLP. Back
Lewis Silkin LLP. Back
Grabiner and Hughes. Back
Q 296; Channel 5. Back
QQ 273 and 773. Back
The rule in Bonnard v Perryman provides that an interim
injunction will not be granted unless it is clear that no defence
will succeed at trial.
Society of Editors; QQ 890 and 908. Back
Q 2. Back
Q 119. Back
Q 3. Section 13 of the Human Rights Act 1998 requires the courts
to have "particular regard to the importance" of the
right to freedom of thought, conscience and religion when determining
any question which might affect the exercise by a religious organisation
of that right. Back
Barnett; Petley. Back
Carter-Ruck para 20; Berrymans Lace Mawer LLP; Tomlinson; Lewis
Silkin; Schillings; Mosley. Back
Q 2. Back
Q 50. Back
Cream Holdings v Banerjee  UKHL 44. Back
American Cyanamid Co v Ethicon Ltd  AC 396. Back
HC Deb, 2 July 1998, col 536. Back
Newspaper Society para 1. Back
Carter-Ruck; Dr Andrew Scott; Schillings; Tomlinson. Back
Withers LLP. Back
See Chapter 1. Back
Practice Guidance was issued by the Master of the Rolls with effect
from 1 August 2011. Back
Practice Direction 51F provides for a pilot scheme for the recording
of data relating to non-disclosure injunctions with effect from
1 August 2011. Back
Op. cit., p v. Back
The costs of bringing and defending privacy actions are discussed
in the next chapter. Back
Q 1672. Back
Q 1629. Back
"The injunction was in respect of a book Alex Hall proposed
to write." Back
QQ 1695-7. Back
CTB v News Group Newspapers Ltd and Imogen Thomas
 EWHC 1232 (QB). Back
Q 223. Back
Q 1086. Back
Society of Editors; Lawyers for Media Standards. Back
Law Society; Schillings. Back
Law Society; Carter-Ruck. Back
Chartered Institute for Journalists. Back
Q 1242. Back
QQ 1251 and 1257. Back
Q 1470. Back
Tomlinson; Q 48. Back
Mosley; Marr. Back
Jameel v Wall Street Journal Europe Sprl  UKHL 44
at . Back
A v B plc and C  EWCA Civ 337 at [11(xii)]. However
in McKennitt v Ash  QB 73 at  the Court of Appeal
held that Lord Woolf's statements in A v B plc cannot be
reconciled with the decision of the European Court of Human Rights
in the first Von Hannover v Germany (op. cit.) and
so "cannot be read as any sort of binding authority on the
content of articles 8 and 10" (at ). Back
Campbell v MGN (op. cit.) at . Lester cites
other judicial commentary on the matter at paras 34 to 36. Back
Chartered Institute for Journalists. Back
Newspaper Society para 30. Back
Q 851 (Viscount Rothermere, chairman, Daily Mail & General
Trust plc); Q 1275 (Richard Wallace, editor, Daily Mirror). Back
Q 271 (Matt McKenzie, editor, The Sunday Sun); Q 893 (Peter
Wright, editor, The Mail on Sunday). Back
Q 605 (Paul Ashford, editorial director, Northern & Shell
Network Ltd); Q 215 (Alastair Machray, editor, Liverpool Echo). Back
Q 1495. Back
Tomlinson (Q 66); Mr Justice Tugendhat (Q 487). Back
Q 1110. Back
Q 876. Back